Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd & Ors Thiess Contractors Pty Ltd v. Bond Corporation Pty Ltd [1988] FCA 1

Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd & Ors Thiess Contractors Pty Ltd v. Bond Corporation Pty Ltd [1988] FCA 1

The Court held that the arbitrator's powers under the contract included the ability to substitute his determination for that of the Superintendent, and that there were aspects of the dispute that may not be fully resolvable by the court. Consequently, Thiess should be allowed to discontinue its cross-claim and advance interlocutory matters in the arbitration, as the Court might lack the necessary remedial power to make substitutive determinations under the contract.

Parties
Applicant and Cross Respondent: Bond Corporation Pty Ltd; First Respondent and Cross Claimant: Thiess Contractors Pty Ltd; Second Respondents: Ove Arup Pty Ltd, Arup Partners Pty Ltd and Ove Arup Consultants Pty Ltd
Jurisdiction
Australia
Judgment Date
20 January 1988
Procedural Posture
Construction Contract Dispute / Post Interlocutory Orders; Application to Discontinue Cross Claim and Vary Injunction; Reasons for Judgment
Outcome
Application granted in part: leave to discontinue cross-claim; injunction varied to allow interlocutory steps in arbitration.
Legal Topics
Arbitrator's Powers Under Construction Contract, Court's Remedial Powers, Interaction Between Arbitration and Court Proceedings, Power to Modify Contractual Rights, Superintendent's Determination in Contract
Practice and Procedure Arbitration Construction Law Arbitrator's Powers Under Construction Contract Court's Remedial Powers Interaction Between Arbitration and Court Proceedings Power to Modify Contractual Rights Superintendent's Determination in Contract

Case Brief

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Parties

Bond Corporation Pty Ltd

Applicant and Cross Respondent

Thiess Contractors Pty Ltd

First Respondent and Cross Claimant

Ove Arup Pty Ltd, Arup Partners Pty Ltd and Ove Arup Consultants Pty Ltd

Second Respondents

Procedural Posture

Construction Contract Dispute / Post Interlocutory Orders; Application to Discontinue Cross Claim and Vary Injunction; Reasons for Judgment

Legal Issues

  1. 1 Whether the court has power to resolve all matters in dispute under the construction contract or whether certain issues are reserved for arbitral determination.
  2. 2 Whether the arbitrator has power to substitute their own view for that of the Superintendent under the contract.
  3. 3 Whether a court can revise or substitute contractual determinations made by a third party under the contract.

Ratio Decidendi

The Court held that the arbitrator's powers under the contract included the ability to substitute his determination for that of the Superintendent, and that there were aspects of the dispute that may not be fully resolvable by the court. Consequently, Thiess should be allowed to discontinue its cross-claim and advance interlocutory matters in the arbitration, as the Court might lack the necessary remedial power to make substitutive determinations under the contract.

Court Disposition

Application granted in part: leave to discontinue cross-claim; injunction varied to allow interlocutory steps in arbitration.

Orders

  • First respondent (Thiess) granted leave to discontinue its cross-claim.
  • Order of 24 February 1987 varied so that first respondent, its servants and agents, are restrained until judgment in the applicant's action or further order from prosecuting beyond completion of all preliminary or interlocutory matters an arbitration between first respondent and applicant as per the notice of...